The video below is a recording of the Webinar that ran on 5 July. It focused on the following key areas:
- The difference between speaking on behalf of Local Government and communicating with your community;
- Understanding prohibitions and potential consequences of casting adverse reflection on Local Government;
- Implied freedom of political communication and qualified privilege; and
- The benefits and pitfalls of using social media.
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Question and Answer Session
The following are a range of questions asked during and after the Communications Webinar for Elected Members held by WALGA on 5 July 2016:
Can I tell ratepayers how I voted on a specific issue if asked?
If asked by a ratepayer how I voted on a particular item on the agenda am I allowed to give my personal opinion even if it is a different view to the Council decision?
Explaining to a ratepayer how you voted and expressing the reasons you saw things differently to the Council decision would only raise issues if you criticised the Council decision.
Experienced Councillors will agree that putting the outcome of a vote behind you and getting on with the decision of Council is in the best interests of people in your district and upholds good governance principles prescribed in the Local Government Act.
Can a transcript of Councillors discussions during debate be provided to the media?
The recording of Council meetings, and whether or not to make these recordings a public record, is a matter that must be determined and established under a formally adopted Council Policy.
What precedence is there that Councillors shouldn't actively campaign for people running in an election?
If a Councillor has been actively promoting a candidate in an extraordinary election, is that a serious breach of the Code of Conduct?
If a Councillor is approached by a candidate in an extraordinary election for him to actively campaign on his behalf, is it best he declines them?
The webinar provides guidance on the consequences that may arise if an Elected Member assists another person in their endeavours to be elected to Council. Publicly supporting one candidate in favour of another, who is subsequently unsuccessful, may lead to difficulties establishing a relationship with the successful candidate, now a fellow Elected Member. Backing a winner, as it were, may create a perception on Council and in the community that you are in an alliance with that person.
Councils work most effectively when individual Elected Members operate as a team that seeks to reach consensus on the important decisions affecting its community. Any activity that may upset the functionality of a Council is best avoided. It is therefore advisable to adopt a principle of non-participation in any election (other than your own) and leave the democratic process of electing its representatives to the electors of your district.
In terms of consequences, an Elected Member who assisted in a Local Government election campaign was fined in the Magistrates Court in 2009 for participating in an election process inappropriately.
Can a Councillor declare that they are standing for a State or Federal Government seat of Parliament on their Councillor Facebook page?
There is no problem using social media for this purpose, it does not conflict with your role as a Councillor.
Can Councillors use their own media to express their opinions?
Many Elected Members use social media, either privately or in their official role. As the webinar indicates, you are an Elected Member at all times in the term of your office so good judgement and care should be taken when using social media so as not to conflict with your official role as a member of your Council.
A Council decision has been made which can be appealed by the community. Are Councillors able to be part of the appeal?
What is the best course of action if you are strongly against a Council decision?
The answer to the first question is no. Participation in an action seeking to undo, amend or revisit a Council decision is highly likely to result in an allegation of a breach of the Rules of Conduct Regulations, that your actions were intended to:
- Cause detriment to the Local Government, other Elected Members, officers or any other person, and
- Disclose information that an Elected Member has derived from a confidential document or acquired from a closed meeting, or otherwise considered confidential in nature.
Elected Members have an option not freely available to members of the public, to revoke or change a Council decision under Regulation 10 of the Local Government (Administration) Regulations 1996.
In order to reach more people with your social media, is it permissible to offer an incentive if people "like" or "follow" their Councillor page?
To WALGA’s knowledge, this is uncharted territory. Considering the many ramifications that arise when Elected Members choose to receive a gift, there may be parallel consequences if an Elected Member offers an inducement to join, follow or like a social media platform that relates exclusively to a person’s role as a Councillor. It would be prudent to seek your own legal advice prior to initiating an incentive scheme.
Can Councillors decide that the CEO can comment without the Mayor/President agreeing? Can Councillors delegate that the CEO speak on behalf of the Local Government without the Mayor/President agreeing?
The answer to both questions is no. The Local Government Act states that the Mayor/President speaks on behalf of the Local Government and that the CEO speaks on behalf of the Local Government if the Mayor/President agrees. There is no head of power under the Local Government Act permitting a Council decision to usurp the role of the Mayor/President or a function of the CEO.
If a decision is made at Council and you are asked to explain your vote by a community member is it okay to do so?
Explaining only the decision of the Council is a preferable alternative. Members of the public are entitled to attend Council meetings to listen to debates, note those speaking for and against an item, how Elected Members cast their vote and the ultimate Council decision.
Can a staff member provide a radio interview regarding a Council project they have been working on?
This will depend on the understanding the Mayor/President and the Chief Executive Officer have in place (using their shared ‘liaison’ function) to determine whether the CEO speaks on operational matters. The CEO may then choose to delegate this function to an appropriate member of staff.
How does the effect of a Councillor who likes to write answers out prior to a meeting affect his or her ability to vote impartially? Is this not coming to a council meeting with a pre-conceived position?
Meeting Procedures and Debating training program encourages Elected Members to prepare for Council meetings by making notes on the issues they intend to raise in a debate. Preparedness does not equate to adopting a pre-conceived position in this context, if the Elected Members is also willing to listen openly to points raised by fellow Councillors in a debate, and be willing to change their mind if convinced by these arguments.
What are the consequences if a Councillor is repeatedly airing his/her views against Council decisions and/or other Councillors?
Publicly criticising Council decisions or fellow Councillors may lead to an allegation of a breach of the Rules of Conduct Regulations.
Councillors concerned about such behaviour may inform the Mayor/President in the first instance so that the requirements of the Rules of Conduct Regulations and the Local Government’s Code of Conduct can be explained to the Elected Member.
If a Councillor made a statement on Facebook prior to being elected on a development, then goes on to become a Councillor, must they delete the old post[s]?
It is quite common for candidates to make statements when seeking election, whether they be face to face, in authorised print media or on social media. Whether or not to delete social media posts would be a personal decision, considering that verbal comments or those reported in print media cannot be withdrawn.
Speaking of Local Government elections, it is also notable that Section 4.87 of the Local Government Act prescribes requirements for the printing and publishing of electoral material. Candidates should be cautious when using social media to ensure that anything considered ‘electoral material’ is compliant with these provisions.
What if the Mayor/President makes a statement that doesn’t reflect a Council decision?
Elected Members are advised to direct any concerns via the Deputy Mayor/President who can then take up the matter with the Mayor/President.
Can an Elected Member publicly state their position to the media when it is in contradiction to the Council's position?
Only if this is done in a way that does not cast adverse reflection on Council. Otherwise, this may lead to an allegation of a breach of the Rules of Conduct Regulations.
Is it advisable to include information such as "now in a relationship" on their social media site?
Thanks for noticing the subtle reference that featured in the webinar! ‘Now in a relationship’ appears early in the presentation on Councillor Jane Smith’s Twitter account. It was our intention to indicate that, as a newly Elected Member, Councillor Smith is now ‘in a relationship’ with her Local Government.
Being an Elected Member has many similarities to being in a relationship, recalling that the Declaration signed when Councillors, Mayors and Presidents take office describes traits of faithfulness, honesty and integrity together with the observance of rules.
Does the Mayor have the right to select a Councillor to speak on an issue rather than the Deputy Mayor?
No, not if this conflicts with the role of the Deputy Mayor/President. Section 5.34 of the Local Government Act permits the Deputy Mayor/President to act in place of the Mayor/President if the office is vacant or the person is unavailable or unwilling to perform their functions. The Act does not permit the Mayor/President to selectively delegate their functions to anyone other than the Deputy Mayor/President.
Can a Councillor publicly declare their stance on an issue coming before Council, prior to the meeting?
The Elected Member may be perceived as biased and lacking objectivity. WALGA strongly recommends Elected Members conduct all necessary research, seek answers to queries on Council Agenda items and prepare their debating points prior to participating in Council’s decision-making process, where objectively and a lack of bias guides their involvement.
Can you quote a Shire policy on social media in response to a question? If you are asked for an outcome on a Council meeting item and you copy and paste the results from the published Minutes is this OK?
Both Council Minutes and Council Policies are public documents, so quoting from or cutting and pasting the content of material that is publicly available would be okay.
If contacted by Local Media or Newspaper can a Councillor give a personal opinion?
Councillors may speak on Council decisions, plans for the future and Council Policies as these are established positions of the Local Government and are likely to already be in the public domain. As indicated in the webinar, Elected Members should exercise careful judgement when speaking to the media so as not to be drawn into making a comment that may be perceived to be in conflict with a Council decision, direction or Policy.
For more information on how to effectively engage with the media, including how to respond to 'loaded questions', please see WALGA Training's course
Can a Councillor request everyone's vote be recorded at a meeting?
Yes. Section 5.21(4) of the Local Government Act states:
If a member of a council or a committee specifically requests that there be recorded —
- His or her vote; or
- The vote of all members present,
on a matter voted on at a meeting of the council or the committee, the person presiding is to cause the vote or votes, as the case may be, to be recorded in the minutes.
If a Councillor has been subject to harassment or defamation on his/her Facebook page, is there any support that the Councillor can receive with regards to taking action against the resident or is it down to the Councillor to take his/her own action?
The risks associated with using social media are well documented and it may be that certain comments, particularly if threatening, may even be referred to the WA Police.
The Department of Local Government and Communities Operational Guideline 14 provides advice and guidance on developing a Legal Representation for Council Members and Employees Policy. It is notable the Guideline’s template Policy states that only in exceptional circumstances will legal costs be paid where defamation action is instituted by a Councillor. It is recommended that you check your Council Policy.
I understand that you'd prefer we get recorded as voting against something. But if we haven't done this, can we answer truthfully when asked how we voted?
The point raised in the webinar is that it would be inappropriate to inform how other Elected Members voted with the intention of creating negative perceptions, or accompanying your answer as to how you voted with adverse reflection on Council’s decision.
Since our Council meetings are recorded and open to public attendance, are we able to state on social media which Councillors voted what way after a meeting?
You should simply direct community members to the Council Minutes, where those who are interested can look up and see for themselves how Elected Members voted on an item. To initiate comment on how Councillors voted may raise questions as to your motives. As the webinar explains, a breach allegation may arise if you use your position to cast adverse reflection on the Council or other Elected Members.
Can a Councillor attend a protest in regard to State Government actions, without it being endorsed by Council.
Council does not need to endorse your participation in activities such as protests, actions or rallies that you attend in a personal capacity where the issue is unrelated to the business of the Local Government.
There are many issues of significance to residents that have no connection to the business of a Local Government and therefore a conflict is unlikely to arise. Elected Members should exercise careful personal judgement in determining whether a matter that is of interest to them conflicts with their role as a Councillor or the business of the Local Government.
If the State Government action does impact on the Local Government, Council should formally discuss and agree on a strategy, such as a deputation to the relevant Minister, rather than endorsing the actions of Councillors on a personal level.
Can a Councillor write about a decision from Council on their social media, so long as it is not negative against the decision? Or is this speaking on behalf of Council? E.g. I am happy the Council moved x motion tonight.
Can a Councillor speak on a decision made at a Council meeting before the minutes are released?
It is advisable to wait until Minutes are publicly available to ensure your comments accurately reflect the decision of Council. Most Local Government agendas contain a disclaimer advising any person seeking a Local Government determination to wait for formal written confirmation of a decision, and not to rely or act upon what they believe occurred at the meeting. In similar vein, ensuring your comments align with the published Minutes is the safest option.
Communicating information that is also publicly available (i.e. Council Minutes) and speaking favourably about a Council decision are appropriate examples of performing an Elected Members role – ‘facilitates communication between the community and Council’.
Some of the questions were not answered in a definitive way (eg. can an elected member talk to the press, upload information to Facebook etc.) Answers on these topics were that "it is advisable" (or words to that effect). What we need to know and understand is; are we or are we not allowed to do it; it is lawful or is it not etc.
In some instances, the webinar was clear in the types of communications that are to be avoided, such as adverse reflection about the Council, its decisions and performance of fellow Councillors and staff. These were included as there is evidence that some Elected Members have been reported to the Local Government Standards Panel for using local newspapers and social media to criticise in this way.
To ask whether something is lawful or not on a subject as broad as communications is impossible to answer; for example, the Rules of Conduct Regulations establish circumstances under which a minor breach complaint may be made to the Standards Panel but do not specify how Elected Members can or can’t communicate. Highlighting that exercising good judgement, acting in good faith, not performing the functions of others (i.e. speaking on behalf of the Local Government) and not speaking adversely are the key messages from the webinar.
By way of example, an Elected Member who answers a constituent’s email enquiry by referencing Council Minutes is simply passing on publicly available information. Another Councillor who expresses a negative opinion of the Council’s decision may have to deal later with a minor breach allegation.